Habeas Corpus, what’s that?

Last year, US District Judge Katherine Forrest made a final ruling that Section 1021 of the National Defense Authorization Act (NDAA) – which allows for the indefinite detention of American citizens without trial – was unconstitutional and therefore unlawful. Government lawyers immediately appealed and in September of last year a 2nd Circuit Judge put a temporary stay on Judge Forrest’s ruling, meaning that Section 1021 of the NDAA was still law. The case is known as Hedges vs Obama, and you can find my previous post about it here.

Since then, the Hedges plaintiffs have made a number of appeals to try and overturn the stay on Judge Forrest’s ruling. None of these appeals have been successful, and in July of this year the Second Circuit Court of Appeals overturned Judge Forrest’s ruling by 3-0. Section 1021 remains in law. Habeas Corpus has effectively been suspended in America. However, a large number of states, counties and cities have begun passing their own legislation against Section 1021 of the NDAA. The two latest being the state of California and the city of Albany in upstate New York. It should be noted that none of this state-level legislation overturns or makes illegal a federal law such as the NDAA. What this legislation generally does, to varying degrees, is to make it illegal for employees of the state or county or city (which includes the police) to assist federal authorities (such as the FBI) in carrying out the indefinite detention provisions of the NDAA. In otherwords, federal authorities can still detain American citizens indefinitely without trial.

Here’s Tangerine Bolen, one of the Hedges plaintiffs, talking recently about the anti-NDAA legislation in California…

It’s interesting what Bolen says about government lawyers successfully arguing that the Hedges plaintiffs have no ‘standing’; ie, they can’t bring such a case to court unless they have actually been detained indefinitely; and this of course is Alice In Wonderland stuff, because once you have been detained under Section 1021 you are not allowed a lawyer or any contact with the outside world, so how are you going to put such a case to court? Likewise, Bolen talks about lawsuits against NSA spying also being thrown out of court for not having any standing; ie, you’ve got to be able to prove that you have in fact been spyed upon, which of course was all top secret: cue Mr Snowden and his revelations, which has prompted a flurry of new lawsuits against the NSA.
It will be interesting to see how the ongoing Snowden revelations impact upon the Hedges vs Obama case. In the meantime, last week there was a fascinating debate onstage at the Sydney Opera House. It was chaired by Bernard Keane, and onstage with him were US Journalist and activist Alexa O’Brien (who’s one of the Hedges plaintiffs) and the Australian commentator, Robert Manne. Joining them by video link are Julian Assange, Glenn Greenwald and Chelsea Manning’s Lawyer, David Coombs. This debate goes on for nearly an hour and forty minutes yet it’s well worth a listen…